USDOL/OALJ Reporter: ARB Decision Caselist - November 2014

PROTECTED ACTIVITY; RESPONDENT IS NOT SHIELDED FROM LIABILITY UNDER THE SOX WHISTLEBLOWER PROVISION MERELY BECAUSE IT WAS ALREADY AWARE OF PROBLEMS REPORTED BY THE COMPLAINANT

POSSIBILITY THAT ERRONEOUS FINDING BY ALJ AS TO WHETHER CERTAIN ACTIVITY WAS PROTECTED UNDER SOX MAY HAVE LED TO OTHER ERRONEOUS FINDINGS BY THE ALJ WAS NOT CONSIDERED BY THE ARB ON APPEAL WHERE RELIEF AWARDED TO COMPLAINANT ALREADY SUFFICIENT TO MAKE HER WHOLE

In Gunther v. Deltek, Inc. , ARB Nos. 13-068, -069, ALJ No. 2010-SOX-49 (ARB Nov. 26, 2014), the ARB noted that the ALJ had erred in finding that concerns raised by the Complainant with management could not be protected activity because management was aware of the problems. See Inman v. Fannie Mae , ARB No. 08-060, ALJ No. 2007-SOX-47, slip op. at 7 (ARB June 28, 2011). The Complainant contended on appeal that this error may have led to other errors concerning adverse action and dismissal of certain named individuals. The ARB, however, found it unnecessary to address these matters as the relief awarded to the Complainant made her whole.

MAKE WHOLE RELIEF; TUITION REIMBURSEMENT

Tuition reimbursement provided by Respondent company's policy is part of award of relief when Complainant enrolled in college classes and took advantage of program while employed with Respondent. Gunther v. Deltek, Inc. , ARB Nos. 13-068, -069, ALJ No. 2010-SOX-49 (ARB Nov. 26, 2014).

ATTORNEY�S FEES MAY BE AWARDED FOR TIME ASSOCIATED WITH AN UNSUCCESSFUL SETTLEMENT NEGOTIATION

In Gunther v. Deltek, Inc. , ARB Nos. 13-068, -069, ALJ No. 2010-SOX-49 (ARB Nov. 26, 2014), the ALJ erred in denying attorney's fees for time associated with unsuccessfully negotiating a settlement of the Complainants' SOX claim. The ARB wrote:

"[S]ettlement discussions are an ordinary part of the litigation process. Thus . . . awarding attorney's fees incurred as a result of reasonable settlement efforts is proper." Couch v. Continental Cas. Co. , 2008 WL 131198, at *5, 2008 U.S. Dist. LEXIS 2327, at *12 (E.D. Ky. Jan. 11, 2008). "[F]ailed settlement negotiations . . . do not warrant a reduction of hours" awarded in attorney's fees. Trainer v. HEI Hospitality, LLC , 2012 WL 119597, *10 (D. Mass Jan. 13, 2012). See also Riverside v. Rivera , 477 U.S. 561, 569 (1986) ("[W]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.").

USDOL/OALJ Reporter at 4.

PROTECTED ACTIVITY; FIRST OFFICER WHO HAD BEEN FAILED ON A CHECK FLIGHT TEST AND STATED THAT HE WOULD GO TO THE FAA; "ABOUT TO PROVIDE" LANGUAGE FROM THE STATUTE PROTECTS EMPLOYEES WHO THREATEN TO FILE COMPLAINTS WITH FEDERAL AUTHORITIES; ALJ ERRED IN FINDING STATEMENT WAS TOO VAGUE TO CONSTITUTE PROTECTED ACTIVITY; ALL THAT IS REQUIRED IS THAT THE COMPLAINANT REASONABLY BELIEVED THAT HE WAS ABOUT TO PROVIDE COVERED INFORMATION REGARDLESS OF WHETHER HE CONVEYED HIS REASONABLE BELIEF TO HIS EMPLOYER

In Occhione v. PSA Airlines, Inc. , ARB No. 13-061, ALJ No. 2011-AIR-12 (ARB Nov. 26, 2014), the Complainant was a first officer seeking to upgrade to captain. As part of the upgrading process, a candidate must go through a "check ride" test in a simulator. Check rides are administered by "Aircrew Program Designees" (ADP), who are pilots approved to act for the FAA. Check rides must adhere to federal regulations and "Practical Test Standards" (PTS), and the FSIMS inspector's handbook. If a first officer fails a first attempt to upgrade to captain, the FAA requires retraining and rechecking before the candidate can return to work as a first officer. The candidate may make a second attempt after six months. According to the applicable collective bargaining agreement, if a first officer fails the second attempt, the company has discretion on how to deal with the situation. The Respondent's policy is to terminate the first officer's employment or allow him to resign in lieu of termination.

The Complainant failed his first check ride, and informed the Respondent that he intended to contact the FAA. The Complainant failed his second check ride but later re-qualified as a first officer. The Complainant sent a letter to Respondent grieving how the check rides had been administered, copying the letter on FAA officials. Months later, the Complainant submitted an FAA Hotline complaint asserting that the check rides had not been administered in accordance with the PTS. The FAA made inquiries.

The Complainant entered a new upgrade class. The Complainant was failed on his third and fourth check ride attempts, and was therefore terminated from employment. The Complainant filed an AIR21 complaint with DOL.

The ARB affirmed the ALJ's findings that the Complainant engaged in protected activity on several occasions. The ALJ found, however, that the Complainant had not engaged in protected activity when he merely informed officials with the Respondent that he was going to the FAA because the statements failed to allege any specific safety violations and were vague. The ARB reversed this finding. The ARB noted that AIR21 protects employees "about to provide" information, and that such language in other whistleblower statutes had been interpreted as protecting employees who threaten to file complaints with federal authorities regardless of whether the employee has actually filed a complaint. The ARB recognized that the ALJ had relied on prior ARB authority holding that complaints must be specific under AIR21 to be protected ( e.g. , Simpson v. United Parcel Serv. , ARB No. 06-065, ALJ No. 2005-AIR-31, slip op. at 5 (ARB Mar. 14, 2008); Peck v. Safe Air Int�l, Inc. , ARB No. 02-028, ALJ No. 2001-AIR-3, slip op. at 13 (ARB Jan. 30, 2004)), but stated that "more recent ARB precedent as well as Fourth Circuit law leads us to conclude that this specificity standard is inappropriate and inconsistent with the AIR 21 whistleblower statute." USDOL/OALJ Reporter at 8 (footnote omitted). See Sylvester v. Paraxel Int�l LLC , ARB No. 07-123, ALJ Nos. 2007-SOX-39, -42; slip op. at 17-19 (ARB May 25, 2011) ("�reasonable belief standard requires an examination of the reasonableness of a complainant's beliefs, but not whether the complainant actually communicated the reasonableness of those beliefs to management or the authorities"); Knox v. U.S. Dep't of Labor , 434 F.3d 721, 725 (4th Cir. 2006) (inquiry into the "reasonable belief" of a complainant does not require that the complainant convey his reasonable belief to management). The ARB concluded:

    As long as [the Complainant] "reasonably believed" that he was "about to provide" the FAA with "information relating to any violation or alleged violation of any [FAA] order, regulation, or standard," his communications to [the ADP who administered the check ride and the Director of Flight Standards] were protected regardless of whether [the Complainant] conveyed his reasonable belief to his employer. The relevant question is whether [the Complainant] reasonably believed that the check ride [the ADP] administered violated an FAA standard when he told both [the ADP and the Director of Flight Standards] that he was "going to the FAA."

USDOL/OALJ Reporter at 9. The ARB also determined that when the Complainant informed his supervisors of his intent to go to the FAA, it would be logical to assume that it was for the same reasons as specified in his protected communication from a month earlier.

ADVERSE EMPLOYMENT ACTION; "CHECK RIDE" TEST GIVEN TO FIRST OFFICER DURING APPLICATION TO BECOME A CAPTION IS ADVERSE ACTION WHERE IT LEADS TO SOMETHING UNFAVORABLE TO EMPLOYEE, REGARDLESS OF WHETHER THE ADMINISTRATION OF THE TEST WAS FAIR

ADVERSE EMPLOYMENT ACTION; WHERE UNDER RESPONDENT�S POLICY, CUMULATIVE EFFECT OF FOUR FAILURES OF "CHECK RIDE" TESTS WAS TERMINATION OF EMPLOYMENT, TWO CHECK RIDES THAT OCCURRED OUTSIDE THE LIMITATIONS PERIOD FOR FILING AIR21 COMPLAINT WERE FOUND TO BE PART OF A SINGLE ACTIONABLE EMPLOYMENT ACTION; EVEN IF CONSIDERED DISCRETE EVENTS NOT ACTIONABLE BECAUSE THEY OCCURRED OUTSIDE THE LIMITATIONS PERIOD, THE FIRST TWO CHECK RIDES MAY BE USED AS BACKGROUND EVIDENCE RELATING TO THE TIMELY CLAIMS

In Occhione v. PSA Airlines, Inc. , ARB No. 13-061, ALJ No. 2011-AIR-12 (ARB Nov. 26, 2014), the Complainant was a first officer seeking to upgrade to captain. As part of the upgrading process, a candidate must go through a "check ride" test in a simulator. Check rides are administered by "Aircrew Program Designees" (ADP), who are pilots approved to act for the FAA. Check rides must adhere to federal regulations and "Practical Test Standards" (PTS), and the FSIMS inspector's handbook. If a first officer fails a first attempt to upgrade to captain, the FAA requires retraining and rechecking before the candidate can return to work as a first officer. The candidate may make a second attempt after six months. According to the applicable collective bargaining agreement, if a first officer fails the second attempt, the company has discretion on how to deal with the situation. The Respondent's policy is to terminate the first officer's employment or allow him to resign in lieu of termination.

The Complainant failed his first check ride, and informed the Respondent that he intended to contact the FAA. The Complainant failed his second check ride but later re-qualified as a first officer. The Complainant sent a letter to Respondent grieving how the check rides had been administered, copying the letter on FAA officials. Months later, the Complainant submitted an FAA Hotline complaint asserting that the check rides had not been administered in accordance with the PTS. The FAA made inquiries. The Complainant entered a new upgrade class. The Complainant was failed on his third and fourth check ride attempts, and was therefore terminated from employment. The Complainant filed an AIR21 complaint with DOL.

The ARB affirmed the ALJ's finding that the Complainant suffered an adverse employment action when the Respondent terminated his employment, and the ALJ's finding that the only actionable adverse actions where those that occurred within the 90 days limitations period for filing an AIR21 complaint. The ARB, however, disagreed with the ALJ that the third and fourth check rides were not adverse actions because they were fairly administered. The ARB wrote:

    An adverse action, however, is simply something unfavorable to an employee, not necessarily unfair, retaliatory or illegal. The ALJ improperly imported a notion of fairness into his analysis of "adverse action." However, the question of whether the check rides were administered fairly has no bearing on whether they may be considered "adverse." While the administration of a performance appraisal (or check ride) is not in itself an "adverse action," when an employee receives a low or unsatisfactory evaluation of his performance appraisal (or check ride), it is clearly an unfavorable employment action and should be considered an "adverse action" within the meaning of AIR 21.

    Each of Occhione's four check ride failures were adverse actions and, though his first and second check rides were not actionable given that they occurred outside AIR 21's limitations period for filing a claim, they may provide background evidence. In National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 114 (2002), the Supreme Court held that discrete adverse actions that occur outside the statutory filing period are not actionable. Nevertheless, the Court explicitly stated that such acts may be used as background evidence in support of a timely claim.

    Under the circumstances of the case before us, each of the four single check rides has attributes constituting both discrete adverse actions as well as part of a single actionable act. Certainly, like a poor performance appraisal, the failure of a check ride is a single actionable act. However, given PSA's automatic termination (or involuntary resignation) policy whereby two failures to upgrade to captain leads to automatic discharge, each of the four check rides provided to Occhione were part and parcel of the single adverse action constituting his termination. In any event, it is clear that at least the last two check ride failures, whether as discrete actions or as part of the ultimate termination of Occhione's employment, occurred within the AIR 21 statute of limitations period.

USDOL/OALJ Reporter at 10-12 (footnotes omitted) (emphasis as in original).

MOHEGAN TRIBE FOUND NOT TO BE A COVERED ENTITY SUBJECT TO SUIT UNDER SOX SECTION 806

TRIBAL SOVEREIGN IMMUNITY NOT SHOWN TO BE ABROGATED BY CONGRESS OR WAIVED BY THE MOHEGAN TRIBE IN REGARD TO A CONSUMER FINANCIAL PROTECTION ACT WHISTLEBLOWER COMPLAINT

In Stroud v. Mohegan Tribal Gaming Authority , ARB Nos. 13-079, 14-013, ALJ Nos. 2013-ACA-3, 2013-CFP-3 (ARB Nov. 26, 2014), the Complainant filed a Sarbanes-Oxley Act and a Consumer Financial Protection Act claim against the Mohegan Tribal Gaming Authority, which was owed by the Mohegan Tribe, a tribal sovereign nation. The ARB affirmed the ALJ's summary decision dismissing the SOX and CFPA claims. In regard to the SOX complaint, the ARB found that the Mohegan Tribe was not a publicly traded company as defined in 18 U.S.C.A. 1514A(a), nor a contractor, subcontractor or agent of such a company. In regard to the CFPA claim, the ARB found that the Complainant had presented no evidence that Congress had abrogated tribunal sovereign immunity or that the Mohegan Tribe had waived immunity from suit.

TIMELINESS OF AFFORDABLE CARE ACT WHISTLEBLOWER COMPLAINT; COMPLAINANT'S RELATION BACK CONTENTION FOUND TO BE UNAVAILING WHERE ORIGINAL COMPLAINT COULD NOT REASONABLY BE CONSTRUED TO INCLUDE ACA RETALIATION ALLEGATIONS

In Stroud v. Mohegan Tribal Gaming Authority , ARB Nos. 13-079, 14-013, ALJ Nos. 2013-ACA-3, 2013-CFP-3 (ARB Nov. 26, 2014), the Complainant filed a Sarbanes-Oxley Act and a Consumer Financial Protection Act claim against the Mohegan Tribal Gaming Authority, which was owed by the Mohegan Tribe, a tribal sovereign nation. After an ALJ dismissed these complaints based on tribal sovereign immunity, the Complainant filed a retaliation complaint under the Affordable Care Act, which a second ALJ dismissed as not timely filed. On appeal, the Complainant argued that the ACA complaint was timely because it related back to the earlier SOX/CFPA complaint. The ARB found that the ALJ had correctly determined that, construing the original complaint in the light most favorable to the Complainant, it had not contained any allegations that could be construed as retaliation covered under the ACA, and that any documents referencing violations of the COBRA law of 1985 were not sufficient to raise a claim under the ACA. Thus, the ARB affirmed the ALJ's dismissal of the ACA complaint as it was filed well over 180 days beyond the statutory limitations period.

INVESTIGATOR'S VERBAL ENCOURAGEMENT TO SIGN BACK WAGE AGREEMENT IN ORDER TO TRY TO AVOID IMPOSITION OF CIVIL MONEY PENALTIES COULD NOT BE RELIED ON BY THE RESPONDENT IN DEFENSE TO ADMINISTRATOR'S LATER IMPOSITION OF SUCH PENALTIES WHERE LETTER ACCOMPANYING AGREEMENT HAD INDICATED THAT CMPS MIGHT BE IMPOSED AND AGREEMENT CONTAINED NO PROVISION LIMITING ADMINISTRATOR'S RIGHT TO IMPOSE SUCH PENALTIES

In Hong Kong Entertainment (Overseas) Investments, Ltd. , ARB No. 13-028, ALJ No. 2010-FLS-8 (ARB Nov. 25, 2014), the Respondent hotel and casino had been the subject of an investigation by the Wage and Hour Division in 2001, and had entered into a consent agreement to pay $591,535.02 for failure to pay overtime in compliance with the FLSA. In 2007, the WHD investigated again and the Respondent signed a Back Wage Compliance and Payment Agreement for $309.816.21 regarding overtime due under the FLSA. The Agreement stated in part that "the [WHD] does not waive its right to conduct future investigations . . . and . . . assess[] . . . civil money penalties with respect to any violations disclosed by such investigations." The Respondent submitted a declaration indicating that the WHD investigator had advised it to sign the agreement to preserve any hope of avoiding or reducing civil money penalties. Later, the WHD Administrator assessed $191,400 in CMPs for willful and repeat violations of FLSA's overtime provisions. On appeal, the Respondent contended that the Back Wage Agreement barred the assessment of CMPs in this case and only covered violations disclosed in future WHD investigations. The ARB agreed with the ALJ, however, that the agreement had not given up the WHD Administrator's right to impose CMPs on the 2007 investigation, especially when viewed in the context of the WHD investigator's accompanying letter. The Respondent also contended that it relied on the WHD's verbal statement that the Respondent should sign the agreement to avoid a CMP. The ARB, however, agreed with the ALJ that the letter accompanying the agreement indicated that CMPs might be imposed, and as a result the Respondent could no longer rely on the earlier verbal statements of the investigator.

FLSA STATUTE OF LIMITATIONS ONLY APPLIES TO INITIATION OF NEW ACTION; IT DOES NOT APPLY TO BAR ADMINISTRATOR FROM PRESENTING EVIDENCE OF PAST VIOLATIONS IN SUPPORT OF CIVIL MONEY PENALTIES BASED ON WILLFUL AND REPEAT CONDUCT

In Hong Kong Entertainment (Overseas) Investments, Ltd. , ARB No. 13-028, ALJ No. 2010-FLS-8 (ARB Nov. 25, 2014), the Respondent hotel and casino had been the subject of an investigation by the Wage and Hour Division in 2001, and had entered into a consent agreement to pay $591,535.02 for failure to pay overtime in compliance with the FLSA. In 2007, the WHD investigated again and the Respondent signed a Back Wage Compliance and Payment Agreement for $309.816.21 regarding overtime due under the FLSA. The WHD Administrator later imposed a $191.400 civil money penalty. The Respondent argued that the five-year statute of limitations under 28 U.S.C.A. § 2462 precluded the Administrator from using evidence of its past violations from its 2001 investigation to establish willful and repeat conduct in support of the assessment of civil money penalties relating to the 2007 investigation. The ALJ held that the statute of limitations did not prevent the Administrator's use of evidence of past violations to show willful or repeat violations, but only applied to an action, suit or proceeding initiated in court. The ARB agreed. In addition, the ARB agreed with the Administrator's contention on appeal that the regulation at 29 C.F.R. § 578.4(a)(5) provides no limitations period for establishing a repeated violation. The regulatory history did indicate, however, that the length of time since the previous violation would be taken into consideration in determining the size of the penalty.

CIVIL MONEY PENALTIES; FACT THAT ADMINISTRATOR ONLY IMPOSED HALF OF ALLOWED CMPS FOR OVERTIME VIOLATIONS INDICATED THAT MITIGATING FACTORS WERE CONSIDERED; RESPONDENT'S FINANCIAL DIFFICULTY CAN BE AN AGGRAVATING FACTOR WHERE EMPLOYEES WERE ALLOWED TO WORK DESPITE KNOWLEDGE THAT THEY WOULD NOT BE PAID OVERTIME AS REQUIRED BY THE FLSA

In Hong Kong Entertainment (Overseas) Investments, Ltd. , ARB No. 13-028, ALJ No. 2010-FLS-8 (ARB Nov. 25, 2014), the Respondent hotel and casino had been the subject of an investigation by the Wage and Hour Division in 2001, and had entered into a consent agreement to pay $591,535.02 for failure to pay overtime in compliance with the FLSA. In 2007, the WHD investigated again and the Respondent signed a Back Wage Compliance and Payment Agreement for $309.816.21 regarding overtime due under the FLSA. The WHD Administrator later imposed a $191.400 civil money penalty. On appeal, the Respondent argued that the Administrator and the ALJ erred in failing to consider as mitigating factors that there was a five year interval between the overtime violations, that this was only the second overtime violation, and that the Respondent's financial condition affected its ability to timely pay overtime. The ARB was not persuaded by these arguments. First, the ARB agreed with the ALJ that the Administrator had only imposed half of the allowed CMP for the overtime violations, and therefore had in fact considered mitigating factors. In addition, the ALJ had affirmed the Administrator's determination that the Respondent's financial condition weighed in favor of imposing CMPs. The ARB agreed with the ALJ that inability to pay overtime does not excuse violating the law as the Respondent could have reduced the size of the workforce to one it could afford or otherwise changed or closed its business. This was not, the ALJ found, an honest mistake but a conscious decision to let employees work when the Respondent knew they would not paid in compliance with the FLSA. The ARB also agreed with the ALJ's rejection of an argument by the Respondent that the ratio between the wages owed and the CMPs was exaggerated.

[STAA Digest V A 2 b]
PROTECTED ACTIVITY; REPORTING FROZEN BRAKES IS PROTECTED ACTIVITY

[STAA Digest V B 2 a i; V B 2 B]
PROTECTED ACTIVITY; REFUSAL TO OPERATE MAY ENCOMPASS ACTUALLY OPERATING A VEHICLE IN A MANNER INTENDED TO MINIMIZE DANGER OF HARM OR VIOLATION OF LAW

In Maddin v. Transam Trucking, Inc. , ARB No. 13-031, ALJ No. 2010-STA-20 (ARB Nov. 24, 2014), the Complainant had pulled alongside a ramp when he was unable to locate a station where he had been directed to purchase fuel, and the gas gauge was below "E." The bunk heater was not working. After 10 minutes, he attempted to drive to a gas station, but the trailer's brakes had frozen due to frigid temperatures. The Complainant called road assist. While waiting for a repairman, the Complainant's physical condition deteriorated because the heater was not working. He called in to report that the heat was not working and the status of his physical condition, and to ask when the repairman would arrive. He was told to "hang in there." The Complainant attempted to follow the suggestion, but became fearful that his condition would lead to injury or death. He unhooked the trailer and called his supervisor to state that he was going to seek help at a gas station. The supervisor directed the Complainant not to leave the trailer because the company would be fined, and ordered the Complainant to either drag the trailer with its frozen brakes or stay where he was. The Complainant repeatedly told the supervisor that the heat was not working. The Complainant then drove the truck in search of a gas station and left the trailer unattended. While searching for an open station, he received a call that the repairman had arrived. The Complainant returned to the trailer, where the repairman fixed the brakes but not the heater. The Complainant called his supervisor who stated that he intended to write up the Complainant for a late load. The Complainant pointed out that the shipper had been 12 hours late delivering the load, and the supervisor then stated that he would write up the Complainant for missing the fuel stop. While following the repairman to a gas station, the Complainant saw signs for the gas station he had been intended to use, and noted that he had been given wrong directions. When the Complainant reported the wrong directions and asked he if was still going to be written up for missing the fuel stop, the supervisor told the Complainant that he would be written up instead for abandoning the trailer. Later, the Complainant was terminated for abandoning his load against company policy. The Complainant filed an STAA whistleblower complaint, and after a hearing the ALJ found that the Respondent had violated the STAA.

On appeal, the Respondent contended that the Complainant had not engaged in protected activity when he complained about the frozen brakes on the trailer, arguing that, while it may be a violation to operate a truck with defective brakes, it is not a violation for a truck simply to have frozen brakes. The ARB, however, affirmed the ALJ's finding that the Complainant engaged protected activity under 29 C.F.R. § 1978.102(a) and (b)(1) when he reported frozen brakes on his trailer, and that the Complainant's report was a complaint related to a violation of a commercial motor vehicle safety regulation (49 C.F.R. § 392.7) that prohibits a driver from operating a vehicle unless the driver is satisfied that the brakes, including trailer brakes, are in good working order. The ARB noted that the STAA only requires that the complaint "relate" to a violation of a commercial motor vehicle safety standard and stated that "[u]ncorrected vehicle defects, such as faulty brakes, violate safety regulations and reporting a defective vehicle falls squarely within the definition of protected activity under STAA." USDOL/OALJ Reporter at 6-7.

The Respondent also argued that the ALJ erred in concluding that the Complainant engaged in protected activity under the "refusal to operate a vehicle" prong of the statute. 49 U.S.C. § 31105(a)(1)(B); 29 C.F.R. § 1978(c)(1). The Respondent argued the Complainant could not have hauled the trailer with the truck, so he could not refuse to drive it. Moreover, the Respondent argued that rather than refusing to operate his truck, the Complainant operated his truck in a manner that violated company policy and a direct order from his supervisor. The ALJ had held that by unhooking the trailer, the Complainant refused to operate the truck under the conditions set by his supervisor. The ALJ credited the Complainant's uncontradicted testimony that he had been ordered to drive the truck dragging the trailer with frozen brakes or remain with the trailer on the side of the road, and found that operating the vehicle with inoperable brakes would violate federal regulations and would create a serious threat of accident or injury to the driver. The ALJ concluded that a reasonable person in the Complainant's circumstances would conclude that operating his truck while dragging a trailer with frozen brakes, would establish a real danger of accident or injury. The ARB affirmed the ALJ's finding of protected activity under the refusal to drive provision, but clarified that the provision does not strictly require that the truck not have been driven:

    Although we affirm the ALJ's finding of protected activity and generally agree with his analysis, we do not agree with the ALJ's particular holding that "refusal to operate is a sine qua non for finding [that Maddin] engaged in protected activity." The "refusal to operate" clause should not be read so narrowly. Under the facts of this case, driving or operating the truck in violation of Kluck's order to remain with the trailer falls within the ambit of the "refusal to operate" clause of STAA and presented precisely the risk of serious injury that STAA is designed to avoid. Our precedent supports this interpretation. For example, in Beveridge v. Waste Stream Envtl. , ARB No. 97-137, ALJ No. 1997-STA-015, slip op. at 3 (ARB Dec. 23, 1997), the Board held that an employee who refuses to drive an overweight truck does not lose protection under the STAA "refusal to drive" provision by correcting the perceived illegality (by off-loading) and proceeding to drive. Similarly, an employee's refusal to operate a truck over a certain speed under conditions rendering it unsafe or illegal might be protected under the "refusal to operate" clause. Certain refusals or insubordinate acts arising out of the complainant's employment as a truck driver may be covered under the "refusal to operate" clause even where the activity does not strictly constitute a refusal to operate the vehicle.

    The ALJ's finding�that by unhooking the trailer "Maddin refused to operate the truck under the conditions set by Mr. Kluck "�is consistent with this reasoning. � As explained above, a "refusal to operate" may encompass actually operating a vehicle in a manner intended to minimize danger of harm or violation of law.

USDOL/OALJ Reporter at 7-9 (footnotes omitted)(emphasis as in original).

CAUSATION; MOTIVE OR ANIMUS IS NOT REQUIRED TO PROVE CAUSATION UNDER THE FRSA

"[N]either motive nor animus is required to prove causation under FRSA as long as protected activity contributed in any way to the adverse action." Petersen v. Union Pacific Railroad Co. , ARB No. 13-090, ALJ No. 2011-FRS-17 (ARB Nov. 20, 2014), USDOL/OALJ Reporter at 3 (footnote omitted).

BACK PAY; UNEMPLOYMENT COMPENSATION IS NOT DEDUCTED FROM BACK PAY AWARD

"[U]nemployment compensation benefits received should not be deducted from back pay awards." Petersen v. Union Pacific Railroad Co. , ARB No. 13-090, ALJ No. 2011-FRS-17 (ARB Nov. 20, 2014), USDOL/OALJ Reporter at 4 (footnote omitted).

PUNITIVE DAMAGES; SHOWING OF ILLEGAL MOTIVE NOT REQUIRED; $100,000 AWARD FOUND WARRANTED WHERE RESPONDENT'S WORKPLACE RULES EFFECTIVELY PUNISHED EMPLOYEE FOR BEING INJURED

In Petersen v. Union Pacific Railroad Co. , ARB No. 13-090, ALJ No. 2011-FRS-17 (ARB Nov. 20, 2014), the ALJ awarded $100,000 in punitive damages. The Complainant had been notified that the Respondent was going to conduct a hearing on whether the Complainant failed to be alert and attentive in violation of work rules while checking messages on his cell phone, and failed to take precaution to avoid having his feet run over by an another employee attempting to park. The Complainant was informed that a finding of a rule violation would result in assessment of level 5 discipline and permanent dismissal, but that the Complainant could sign a leniency agreement waiving the right to an investigation, agreeing to an unpaid suspension and a return to work on a probationary basis during which any breach of workplace safety would be grounds for removal from service without an investigation. The Complainant signed the leniency agreement. Four days later he was observed purportedly working in an unsafe manner, which led to being taken off duty and subsequent termination from employment. The ALJ found that the company's disciplinary rules effectively punish an employee for being injured.

On appeal, the Respondent challenged the punitive damages award on the ground that it was not supported by evidence of illegal motive. The ARB rejected this argument writing:

FRSA does not, however, require "illegal motive" to sustain a punitive damage award. An award of punitive damages may be warranted where there has been "�reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law.�" Possible relief under FRSA "may include punitive damages in an amount not to exceed $250,000." 49 U.S.C.A. § 20109(e)(3). The size of the punitive award "is fundamentally a fact-based determination," and "[w]e are bound by the ALJ's [factual] findings if they are supported by substantial evidence."

USDOL/OALJ Reporter at 5 (footnotes omitted).

The ARB found that the ALJ's punitive damages award was warranted, in accordance with law, and supported by the facts. The ARB found that the size of the award was within the amount allowable by law and in line with awards in comparable cases.

CONTRIBUTORY FACTOR; A CHAIN OF EVENTS CAN SUBSTANTIATE A FINDING OF CONTRIBUTORY FACTOR

In Petersen v. Union Pacific Railroad Co. , ARB No. 13-090, ALJ No. 2011-FRS-17 (ARB Nov. 20, 2014), the ALJ awarded $100,000 in punitive damages. The Complainant had been notified that the Respondent was going to conduct a hearing on whether the Complainant failed to be alert and attentive in violation of work rules while checking messages on his cell phone, and failed to take precaution to avoid having his feet run over by an another employee attempting to park. The Complainant was informed that a finding of a rule violation would result in assessment of level 5 discipline and permanent dismissal, but that the Complainant could sign a leniency agreement waiving the right to an investigation, agreeing to an unpaid suspension and a return to work on a probationary basis during which any breach of workplace safety would be grounds for removal from service without an investigation. The Complainant signed the leniency agreement. Four days later he was observed purportedly working in an unsafe manner, which led to being taken off duty and subsequent termination from employment. The ALJ found that the company's disciplinary rules effectively punish an employee for being injured.

On appeal, the Respondent contended that "evidence showing a 'sequential connection' or a 'chain of events' cannot alone support a finding of causation because such a ruling would render 'meaningless the carrier's ability to discipline its employees whenever it discovers a rule violation through an injury report.'" USDOL/OALJ Reporter at 3, quoting Respondent's appellate brief (footnote omitted). The ARB characterized this argument as a straw man, pointing out that a respondent may avoid liability "if it proves by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of a complainant's protected behavior." The ARB also stated that it "has made clear that a 'chain of events' can substantiate a finding of contributory factor." Id . at 3 (footnote omitted). Moreover, the ALJ additionally cited evidence of the Respondent's knowledge of protected activity, temporal proximity, disparate treatment, and evidence that the company's disciplinary rules effectively punish an employee for being injured.

CIVIL MONEY PENALTY MAY BE ASSESSED FOR EACH LOCATION WHERE EMPLOYER MADE UNAUTHORIZED PLACEMENT OF H-2B WORKERS

In Administrator, Wage & Hour Div., USDOL v. 5 Star Forestry, LLC , ARB No. 13-056, ALJ No. 2012-TNE-10 (ARB Nov. 6, 2014), the Respondent received certification for 63 H-2B workers for work in three counties in Mississippi. The workers were sent instead to two locations in Idaho, one location in Montana, and one location in Washington, in violation of the attestation that the workers would work in Mississippi. The Respondent claimed that workers were not able to work in Mississippi because of inclement weather and a unilateral revocation of a contract. The Wage and Hour Division Administrator assessed $5,000 penalties for each of the four outside locations, totaling $20,000. The ALJ accepted the Administrator's imposition of a penalty for each work location outside Mississippi, but reduced the penalties to $3000 per location. The ALJ accepted the Administrator's deterrence argument that without a separate penalty for each unauthorized placement, employers would have an incentive to manipulate location rules. The Respondent appealed the imposition of four separate penalties, arguing that its placement of the H-2B workers at multiple locations should result in a single civil money penalty for violation of 20 C.F.R. § 655.20(b). The ARB noted that neither the statute nor the regulations explicitly address the issue of whether a separate penalty may be assessed for unauthorized placement of H-2B workers at multiple locations, but accepted the Administrator's policy argument that separate penalties are necessary to avoid displacement of U.S. workers at the work location. The regulations require an employer to conduct recruitment in, and obtain a prevailing wage for, and prepare a recruitment report, the area of intended employment. In the instant case, the Respondent had not undertaken the recruitment measures at each of the four different locations where it placed the H-2B workers. The ARB wrote:

These failures constitute four substantive deviations from the H-2B regulations. The Administrator reasoned that "[t]he Department employs this approach because, for each location, the employer has failed to conduct the recruitment and hiring efforts necessary to ensure that there are no workers in the U.S. available to perform the work. By holding employers financially accountable for each location (rather than assessing a single violation regardless of the number of unidentified employment areas), the policy also intends to diminish employers' motivation to commit multiple employment area violations." ... The ALJ agreed with the Administrator's reasoning .... The ARB agrees as well. This interpretation of the regulation advances the INA's goals to protect both domestic and foreign workers by assuring proper enforcement of the INA's H-2B provisions.

Slip op. at 6 (citations to the record and ALJ decision omitted).

COMPENSATORY DAMAGES FOR MENTAL DISTRESS CAUSED BY RETALIATION; UNREFUTED STATEMENTS OF PSYCHIATRIST AND PSYCHOLOGIST ATTRIBUTING MENTAL CONDITION TO RETALIATION; PARAMETERS OF AWARD

in Luder v. Continental Airlines, Inc. , ARB No. 13-009, ALJ No. 2008-AIR-9 (ARB Nov. 3, 2014), in an earlier decision the ARB had affirmed the ALJ's decision finding that the Respondent violated AIR21 when it suspended the Complainant for four days and issued an 18 month termination warning letter after the Complainant refused to fly a plane he believed may have been damaged due to turbulence experienced during the preceding flight with a different flight crew. The ARB, however, had remanded for further consideration of a compensatory damages award the ALJ had imposed requiring the Respondent to make a monthly pay award until the date the Complainant reached the mandatory retirement age. The award had been based on the ALJ's finding that the Complainant experienced PTSD, depression and anxiety following the refusal to fly incident and subsequent related events, such that he that could no longer fly and consequently experienced a 50% loss in income. The ARB found that the ALJ's analysis was so lacking in specificity and supporting findings of fact as to make it not possible to conduct appellate review. The ARB's remand order indicated that the ALJ was to clarify the legal basis for the award, and gave the ALJ discretion how to address the issue in further proceedings. On remand the ALJ allowed the submission of additional evidence. The ALJ found that the evidence showed that prior to the adverse employment action, the Complainant was functioning as a responsible pilot, and that following the adverse action he experienced deteriorating symptoms, indicating causation. The ALJ ordered front pay.

On appeal, the Respondent argued that the ALJ erred in reopening the record. The ARB, however, noted that its remand order did not foreclose reopening of the record, and that the OALJ procedural regulation at 29 C.F.R. 18.54(a) affords an ALJ discretion to reopen a record on remand. The ARB also found no prejudice as both parties were permitted to submit additional evidence.

Applying a preponderance of the evidence standard, the ARB found that substantial evidence supported the ALJ's determination that the Respondent's retaliatory actions caused the Complainant's mental decline. This evidence included a declaration and deposition of a psychiatrist and the deposition of a psychologist, both of whom had treated the Complainant. The psychiatrist opined that the trauma of being treated unfairly at work was a trigger for the mental deterioration, and the psychologist opined that the trigger was the retaliation the Complainant suffered at work. The ARB noted that the Respondent had not proffered any independent medical evidence to directly refute the opinions of the psychiatrist and psychologist. The ARB also noted that in a neuropsychological evaluation conducted at the Respondent's request also attributed the Complainant's psychological symptoms to the retaliatory events and the Complainant's refusal to fly.

The ARB, however, modified the parameters of the ALJ's compensatory damages award, finding that the undisputed medical evidence showed that the Complainant's psychiatric/psychological treatments had ended, and that there was no evidence the Complainant continued to suffer from psychiatric or psychological conditions after the conclusion of treatment that would prevent a return to work. The ARB therefore ordered that the monthly payment end as of the date of the last psychiatric treatment.

One member of the ARB panel dissented on the ground that the medical evidence was only generalized and conclusory. The dissenter criticized the majority opinion for failing to cite an objective standard for evaluating the Complainant's medical evidence and for failing to point to evidence of record containing an articulated explanation of medical causation. The dissenter would not go so far as to require an ALJ to perform an Daubert style gatekeeping function on the admissibility of expert testimony, but recommended that ALJs look to FRE 702 for principles designed to foster objectivity in reviewing medical expert evidence concerning medical causation. The dissenter stated: "In the end, where complex and long-term psychological injury (e.g., major depression) is an issue, the employee's evidence should include some articulated, rationalized medical opinion evidence that explains with some level of specificity how the unlawful employment action caused or substantially contributed to the psychological injury and how the expert ruled out more temporally proximal stressors." USDOL/OALJ Reporter at 17.